Canadians held in Syria mulling SCC appeal after court denies Ottawa has obligation to repatriate

The Federal Court of Appeal has found that the government does not have a positive obligation, under Charter-guaranteed mobility rights, to repatriate Canadian citizens held in Syrian prison camps.

Lawrence Greenspon, who was counsel for three of the four respondents, says they are considering an appeal to the Supreme Court of Canada. He says that whether a court can require Global Affairs Canada to facilitate repatriation where Canadians’ rights are being violated is a question of national importance.

“The heart of the case really boils down to, where there are Canadians in a foreign country, Charter rights are clearly being violated on a daily basis, and Canada can do something, are they obligated to do something?” says Greenspon. “Can the court order them to do something to take steps to facilitate their repatriation?”

While the Court of Appeal found that Canada had no positive obligation to help the detainees, Barbara Jackman, who was counsel for one of them, takes issue with the characterization that Canada was being asked to perform a “positive obligation.” The authorities in Syria said they would release the men if Canada asked. Otherwise, they would remain “in indefinite detention under cruel conditions," she says.

The detainees argued that their imprisonment and Canada’s refusal to act engaged s. 7 of the Charter, the “right to life liberty and security of the person,” and s. 6, that “every citizen of Canada has the right to enter, remain in, and leave Canada.” The Federal Court of Appeal’s decision was based on the s. 6 issue. Jackman says that the court did not deal with the s. 7 argument.

While the case was before the Federal Court, Greenspon negotiated with Global Affairs Canada for the repatriation of 19 Canadian women and children who were being held in the Syrian prison camps. On Jan. 18, the day before the Federal Court released its ruling, Greenspon and the feds successfully concluded their agreement. But the government was not interested in any deal to repatriate four Canadian men who were imprisoned along with the other 19.

The respondents in Canada v. Boloh 1(a), 2023 FCA 120 are those four Canadian men currently detained in north-eastern Syria, a region controlled by the Autonomous Administration of North and East Syria (AANES). The AANES is a non-state entity, which “does not consider itself bound by international conventions or treaties concerning human rights, international relations or the safe passage of diplomats,” said Justice David Stratas, who wrote the reasons for the Federal Court of Appeal decision.

The AANES suspects that the respondents either fought for or aided the Islamic State of Iraq and Syria (ISIS), but recently has been telling foreign states to repatriate their citizens held in its prisons.

In January, the Federal Court found that Canada had a positive obligation to request the return of its imprisoned citizens, provide them with travel documents, and appoint a representative to travel to the region as soon as possible. The court found that Canada had breached the Charter in its failure to take all reasonable steps to bring the respondents home.

The Federal Court of Appeal found that the Federal Court’s application of s. 6(1), which provides for the right “to enter… Canada,” was too broad. The court allowed Canada’s appeal and set aside the Federal Court’s judgment. Greenspon notes that the ruling does not have an adverse impact on the Canadian women and children whom Global Affairs Canada agreed to repatriate.

The appeal court added in a postscript that while Canada was “not constitutionally obligated or otherwise obligated at law,” its reasons “should not be taken to discourage the Government of Canada from making efforts on its own” to repatriate the respondents.

“We are satisfied that the appeal was allowed,” said a statement on the ruling from Global Affairs Canada. “The safety and security of Canadians is our government’s top priority. Due to the unique nature of the complex cases of Canadians in Syria, the Government of Canada considers providing extraordinary consular assistance on a case-by-case basis and will continue to do so.”

“Due to privacy and operational security considerations, we cannot comment on specific cases or potential future actions.”